Divorce Procedure
BASIC OVERVIEW
This page deals with Undefended "Special Procedure" Divorces. Over 95% of divorces are dealt with in this way. There are five separate stages as follows:
ISSUE PROCEEDINGS
A Divorce Petition, Statement of Arrangements, and other documents are prepared and filed at Court.
ACKNOWLEDGEMENT OF SERVICE
The court sends the papers to the other party "Respondent" who has to complete an Acknowledge-ment of Service form and return it to the court.
DIRECTIONS FOR TRIAL
The Petitioner completes Directions for Trial form and an Affidavit in Support and files them at Court.
DECREE NISI
A Judge will then consider the papers and if satisfied will pronounce a Decree Nisi.
DECREE ABSOLUTE
This is the final divorce order, and can be applied for by the Petitioner six weeks and a day after the pronouncement of the Decree Nisi.
THE PETITION
The issue of a PETITION starts the divorce. This will be in a standard form and will need to contain the particulars required by the rules. If the form is followed it is relatively easy to draft the petition. The main points to bear in mind are these:
• The date and place of the marriage need to be shown exactly as they are in the marriage certificate (which needs to be lodged at the court with the divorce petition
• Many of the questions in the divorce can be answered by striking out the word "except" at the end of the paragraph
• Details must be given of the children of the marriage who are the children of both of you or children who have been treated as children of both of you. They cease to be children of the family after they reach the age of 17 or, if later, leave full time education or training. When describing the children in the petition state each child's full name and date of birth e.g.
• There are no children of the family now living except
• John Smith who was born on the date of 19
• Jane Smith who was born on the date of 19
• After the statement that the marriage has broken down irretrievably set out the ground upon which you rely and in the next section give a short statement of facts explaining the basis of your divorce.
• Do not strike out the claims for financial relief in the prayer at the end of the petition. You cannot have the claims dismissed in order to achieve a Clean Break unless the prayer is left intact although the claims on behalf of the children should be struck out of there are no children.
THE STATEMENT OF ARRANGEMENTS
THE STATEMENTS OF ARRANGEMENTS FOR CHILDREN will need to be completed if there are children. Answer the questions carefully and fully. The court will not make an order in respect of the children unless it believes that an order is necessary. The information must be given to enable a decision to be taken on that point. The Statement is your proposal. If the Respondent disagrees there will be a chance for a counter-proposal to be made.
ISSUE OF PROCEEDINGS
You will need to send or take the following to the court to start divorce proceedings:
1. The divorce petition and one copy for the court to send to the Respondent.
If you have named the co-respondent in an adultery case the court will need a further copy of the divorce petition to serve on that party. In general terms do not name the co-respondent. They have to be served and will often not acknowledge service. You then have to pay to have the court bailiff serve them personally. It is a waste of time and money
2. The Statement of Arrangements and one copy for service
3. Your marriage certificate or, if you cannot get it, a certified copy from the registry office where your marriage was registered.
4. The court fee – if you cannot afford this ask the court about the application for fee exemption or remission and complete the form which you are given.
ACKNOWLEDGEMENT OF SERVICE
The court will send a copy of your petition and statement of arrangements to the other side with a form by which service of the petition can be acknowledged. In the form there is space for admission of adultery or behaviour, confirmation of consent to divorce, agreement or disagreement with the statement of arrangements and various other matters. The Respondent should send back the form, within 14 days of receiving the petition, to the court office who will send a photocopy to you with the court seal on it.
DIRECTIONS FOR TRIAL
If there is no objection to the divorce you can supply the court with evidence in support of your petition. Complete the AFFIDAVIT IN SUPPORT, which the court will send to you with the Acknowledgement of Service form. Attach to it a photocopy of the acknowledgement.
You then need to arrange for the Affidavit to be signed and sworn. This only takes a few minutes but it must be done in front of either a local solicitor (who will charge you about £7.00) or at the local court office before an officer of the court (free of charge)
As well as the affidavit you will need to complete and sign another form entitled REQUEST FOR DIRECTIONS FOR TRIAL (SPECIAL PROCEDURE). Do not be put off by the reference to trial. The District Judge will consider your entitlement to a divorce on the basis of the Petition, the Affidavit and, occasionally, further information or affidavit evidence which might be requested to clear up any worries or doubts which the Judge has. The request for directions is therefore your request that the Judge looks at the facts of your case to decide if you are entitled to a divorce.
DECREE NISI
The Judge will look at your petition and affidavit as well as the statement of arrangements for children. Sometimes the consideration of the papers throws up questions, which the Judge will need to have answered before allowing the divorce. If so you will be sent a note of what the Judge needs or you may even be asked to go to the court to discuss the matter with the Judge. This is nothing to be worried about. The Judge will see you in private and will explain the concern to you as well as telling you what you should do next.
If the Judge is satisfied with the paperwork you will be sent two pieces of paper. One will be the District Judge's Certificate confirming your entitlement to a divorce telling you when the decree nisi is to be pronounced. The other will be a Certificate in respect of children stating either that there are no children to whom the court must have regard or that there are children but that no order is necessary. This will not prevent you from seeking to resolve any arguments about the children through court proceedings if any differences of that kind arise as the divorce is proceeding or afterwards.
The District Judge's Certificate will also set out any other orders that the court will be making at the time when decree nisi is pronounced. These usually include any order in respect of costs (see below).
On the date specified in the Certificate the Judge will pronounce your decree nisi in a public court session. No details will be given. A list of all the divorces being dealt with that day will be read out and the Judge will confirm that Decree Nisi is pronounced in each of them. There is rarely any need to attend for this hearing. Very little happens and the procedure is very quick. If there is a dispute on any of the other orders, which the Judge has been asked to make, you will have the chance to go to court on the day when the decree nisi is pronounced and the Judge will decide the issue at that hearing.
The most usual argument at this stage is the Respondent's refusal to accept a costs order. As in any court case you will incur expenses such as court fees, travel expenses if you need to go to court and perhaps loss of wages or time at work. The court may order that you can recover these. If you instructed solicitors to deal with your divorce you should also be able to get back some part of your solicitor's bill. The court will tell you what to do about this either in the District Judge's Certificate or in a separate note sent out with the decree nisi itself. If you are seeking costs you will be asked to send the court and the other side a note of what you are hoping to recover. At the very least you should seek to recover the court fees that you have to pay or a part of them.
The claim for costs originally is made in the petition so it is worth giving it some thought at that stage. If you are able to agree the terms of the divorce you may wish to agree, for example that your petition will include a request for the Respondent to pay half the costs of the petition. If there is no agreement you may wish to use the costs claim as a negotiating lever by, for example, making a claim for costs limited to one half of the costs unless the matter becomes defended.
Any change is your costs requirements can be dealt with in the affidavit which you swear in support of the petition and if the point has been agreed by then (as it often is) you can tell the court what costs order you want in the affidavit.
DECREE NISI and ABSOLUTE
It is important to understand the difference between the two types of decree. Nisi is the Latin for "unless" which is a very accurate way of looking at it. You are not divorced at the stage of the decree nisi but will be unless, within 6 weeks following its pronouncement, something happens which prevents the decree being made absolute such as reconciliation or the discovery that the divorce is invalid.
You will not be divorced until you apply for and obtain your decree absolute. This is done by sending or taking the APPLICATION FOR DECREE NISI TO BE MADE ABSOLUTE to the court and paying a further fee. As to the issue fee payable on the petition you can apply for that fee to be waived or reduced by making enquiries at the court office.
Upon grant of the decree absolute:
• You cease to be married
• Your Will, if you have one will be treated as if any reference to your ex-husband or ex-wife is not there
• Any gift to you in your ex's Will be treated as removed
• If either of you dies the other will no longer be the widow or widower of the other and will not be entitled to any of the benefits under any life insurance or pension
• You can remarry
We recommend making a new Will as soon as you receive your Decree Absolute.
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